Why Does The US Patent Office Keep Approving Clearly Ridiculous Patents?
from the patent-office-is-as-patent-office-does dept
Imagine you're on your way to deliver a case of beer to a party. Before you get there, your boss sends you a text: They want 2 cases now. You read the text while driving (don't do that), so you deliver an extra case when you arrive. Having successfully completed that task, you leave for your next delivery.
Congratulations! You might get sued by the owner of April's stupid patent of the month.
This month's winner, US Patent No. 9,013,334 (the '334 patent), has the prosaic title: Notification systems and methods that permit change of quantity for delivery and/or pickup of goods and/or services. It issued just last week, on April 21, 2015. As its title suggests, the patent claims a "method" of updating delivery information. It belongs to Eclipse IP LLC, one of the most litigious patent trolls in the country. Eclipse belongs to an elite group of trolls (such as Arrivalstar and Geotag) that have filed over 100 lawsuits.
Eclipse owns a patent family of more than 20 patents, all of which claim priority back to a single 2003 provisional application. These patents claim various closely related "notification systems." Eclipse interprets its patents very broadly and has asserted them against a wide range of mundane business practices. For example, in January it sent a letter claiming that Tiger Fitness infringes one of these patents by sending emails to customers updating them about the status of orders. This letter explains that "Eclipse IP aggressively litigates patent infringement lawsuits" and that "litigation is expensive and time consuming." The letter demands a $45,000 payment.
We think that all of Eclipse's patents deserve a stupid patent of the month award. But the '334 patent is especially deserving. This is because the Patent Office issued this patent after a federal court invalidated similar claims from other patents in the same family. On September 4, 2014, Judge Wu of the Central District of California issued an order invalidating claims from three of Eclipse's patents. The court explained that these patents claim abstract ideas like checking to see if a task has been completed. Judge Wu applied the Supreme Court's recent decision in Alice v CLS Bank and held the claims invalid under Section 101 of the Patent Act.
All of Eclipse's patents were both "invented" and prosecuted by a patent attorney named Scott Horstemeyer (who just so happens to have prosecuted Arrivalstar's patents too). Patent applicants and their attorneys have an ethical obligation to disclose any information material to patentability. Despite this, from what we can tell from the Patent Office's public access system PAIR, Horstemeyer did not disclose Judge Wu's decision to the examiner during the prosecution of the '334 patent, even though the decision invalidated claims in the patent family. While Horstemeyer has not made any genuine contribution to notification "technology," he has shown advanced skill at gaming the patent system.
Trolls like Eclipse will continue to thrive as long as the Patent Office gives them stupid patents and courts allow them to use the cost of litigation to extort settlements. Reform such as the Innovation Act will make abusive patent litigation less attractive. But we need broader reform to stop the Patent Office from being a rubber stamp for vague and overbroad software patents.
Late breaking addition: As if to drive home just how much of a rubber stamp it is, the Patent Office issued yet another patent to Eclipse yesterday. Patent No. 9,019,130 is almost identical to the '334 patent, except it deals with updating "time" information instead of "quantity" information.
Republished from the EFF's Stupid Patent of the Month series
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: deliveries, notifications, patents, uspto
Companies: eclipse ip
Reader Comments
Subscribe: RSS
View by: Time | Thread
Why don't they....
[ link to this | view in chronology ]
Re: Why don't they....
[ link to this | view in chronology ]
Re: Why don't they....
The only thing better than a patent is more patents.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Careful there
If you want to say that they made a mistake, you have to use broad, general language, like 'they may have made a mistake granting a patent at some point, though unfortunately I can't give you any examples'.
[ link to this | view in chronology ]
Re: Careful there
[ link to this | view in chronology ]
Re: Re: Careful there
No, that's being critical of those in power, which is also an 'improper protest', so that's no good either. Hmm....
'Someone may or may not have made a mistake at some point, though I don't have any details' perhaps?
[ link to this | view in chronology ]
Re: Re: Re: Careful there
I can neither confirm nor deny that anyone, anywhere has ever made a mistake.
[ link to this | view in chronology ]
Re: Re: Re: Re: Careful there
[ link to this | view in chronology ]
Re: Careful there
[ link to this | view in chronology ]
Re: Re: Careful there
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Just another day at the USPTO
He's shakes his head, slaps himself a few times in a vain effort to wake up, looks over at the even larger pile of applications to go, and stamps "APPROVED" on the one he's looking at. Then he takes a break and goes to cry in the employee lounge until the super forces him back to his desk.
[ link to this | view in chronology ]
Okay, patent office and patent system is broken! What's your solution?
Neither Techdirt nor EFF have any articulable goals. These professional kibitzers don't even recognize the need for goals, only say needs more study!
[ link to this | view in chronology ]
Re: Okay, patent office and patent system is broken! What's your solution?
[ link to this | view in chronology ]
Step one: Admit there is a problem
Just because you don't have an answer on how to fix something, does not make pointing out that it's broken and in need of fixing any less important. It's a rare problem that gets solved without enough people admitting that it is a problem after all.
[ link to this | view in chronology ]
Re: Step one: Admit there is a problem
Mr Masnick, with your Ivy League degree and your more than decade studying the problem of the patent system being "broken" (taking that as given), please give us your top ten ways you think could improve the system -- doesn't have to fix it all -- and this is just brain-storming, so just toss them out.
Now all we have to do is wait. I hear Masnick's fingers tapping keys even now...
[ link to this | view in chronology ]
Re: Re: Step one: Admit there is a problem
[ link to this | view in chronology ]
Re: Re: Step one: Admit there is a problem
[ link to this | view in chronology ]
Re: Re: Step one: Admit there is a problem
[ link to this | view in chronology ]
Re: Re: Step one: Admit there is a problem
You're a joke. The closest you could come to having a brainstorm is taking a dump.
[ link to this | view in chronology ]
Re: Re: Step one: Admit there is a problem
*clicks report*
[ link to this | view in chronology ]
Re: Step one: Admit there is a problem
Just because you don't have an answer on how to fix something doesn't mean you shouldn't find someone who can fix it.
Like your car example, if you see something wrong, you take it to a mechanic who can diagnose and fix it. You yourself don't need to know anything engines or brakes.
[ link to this | view in chronology ]
Re: Okay, patent office and patent system is broken! What's your solution?
That goal is to eliminate all IP with a very narrow exception in trademark where actual confusion to a costumer is involved and is in the same business in the same market, and that does not include publicity rights in any way shape or form.
Like I said, extreme.
[ link to this | view in chronology ]
Re: Okay, patent office and patent system is broken! What's your solution?
[ link to this | view in chronology ]
Re: Okay, patent office and patent system is broken! What's your solution?
I also fail to see how the EFF doesn't have articulable goals. Unless by 'articulable goals' you mean, as the trolls often do, fully fleshed out legislation ready to be lobbied. I could give you the sound bites, or allow them to tell you about their work in very clear goals here: https://www.eff.org/issues
[ link to this | view in chronology ]
Re: Okay, patent office and patent system is broken! What's your solution?
That isn't a complete fix! But it should help with many of the truly absurd ones. Many times these are paid when BOTH sides know the accuser could never win. It's just cheaper to pay than fight. We need a way to address those!
[ link to this | view in chronology ]
A: $$$$$$$$$$$
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
long way since Edison
Look at Edison's patent for the electric lightbulb. It is very clear.
These troll patents we see today are the equivalent of a three step get rich scheme where the second step is a black box with a row of question marks on it.
[ link to this | view in chronology ]
Re: long way since Edison
The patent system has been broken for MANY years, James Watt and Matthew Boulton used very dubious patents to stifle any and all improvements in steam engines for decades, Alexander Graham Bell's telephone patent has long been mired in controversy, Marconi with Radio and countless other examples keep cropping up. These current patents are egregiously bad because they clearly derive from complete non-inventions but that's nothing new!
[ link to this | view in chronology ]
Our procedure for approving patents
Step 2. Has patent application been filed by correct patent owner? Low-life lawyer - double tick, anyone else - tick.
Step 3. Has correct fee been paid? Yes - tick, No - cross.
Step 4. Is number of ticks received greater than 3 then issue patent.
Step 5. Analyse patent for validity - give to monkey in B-03 for analysis.
[ link to this | view in chronology ]
Goes to show
[ link to this | view in chronology ]
[ link to this | view in chronology ]
US 5443036 A
Abstract
A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct.
[ link to this | view in chronology ]
I filed a patent for a...
It got rejected as "Obvious to those skilled in the field."
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Don't do that? I do that all the time, and it's perfectly safe: my car has a Bluetooth link to my phone, and it uses text-to-speech to read text messages to me. It's no more of a dangerous distraction than listening to the radio.
[ link to this | view in chronology ]
Re:
Although the precise place on the list varies by study, listening to the radio is consistently in the top 10 most common contributing factors in auto accidents. It's usually in the top 5.
Having a passenger in the car with you is even more dangerous.
[ link to this | view in chronology ]
Re:
I saw a guy texting while riding his bike yesterday. Weaving all over the street, which happens to have potholes, trolley tracks, and heavy truck traffic. I’m still nonplussed at the pathological inability to prioritize.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
One of the issues here is that patent applicants get an unlimited number of tries.
i think that after the first amended application, they (and any one else) should be permanently bared from using ANY of the claims in the patent application. these claims would then go into the prior art database.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Say it isn't so
See, the reality was: his job was not to evaluate and approve or reject food at the port of entry. His job was to evaluate and unconditionally approve it.
So you might think a patent examiner's job is to evaluate a patent, and approve or reject it. But God help any examiner who might be so bold as to reject a patent.
[ link to this | view in chronology ]
Re: Say it isn't so
[ link to this | view in chronology ]
software patents,
do examiners have to pass x amounts of patents per day, week.
is there a quota.
IF a car breaks down a certain amount of times its
taken off the market,
its time for politicians to admit the patent system is broken .
There needs to be a committee setup to investigate this .
so in the meantime startups and ordinary companys are being negatively effected by this .
Maybe people need to start complaining to their congressman ,senator about this .
One example in the uk the had a committee on copywrite,
they looked at the laws on music ownership,
they made cd ripping legal,
if you buy a cd you can rip it,put it on a mp3 player
or a phone for personal use .
Software patents in the usa have been a disaster ,
they have just provided money for trolls ,
lawyers and taken money from startups an reduced competition .
[ link to this | view in chronology ]
So all you need to do is inform FedEx, USPS and Amazon and they'll all go to town on this troll.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]